Complainant

Respondent

Anonymised Parties

Restaurant Manager

Restaurant chain

Representatives

Self 

Ciaran Ahearne A&L Goodbody

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033988-001

25/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033989-001

25/01/2020

The Complainant believed he was Constructively Dismissed from his place of employment at the end of a Disciplinary process which crossed over with a request to move him to a place of work which he was unable to get to.

The Complainant attended in person and gave a comprehensive account of his history with the Respondent company. The Complainant was subjected to a Disciplinary process he thought was unfair and then resigned his position when he thought he was being moved to a workplace which he could not readily access.

The Respondent provided me with a comprehensive written submission together with supporting documentation. I heard from the Respondent HR Manager. The Respondent denies that the Complainant was dismissed – Constructively or otherwise.

I acknowledge that the Respondent sent some additional documentation after the hearing to include the letter of the 7th of January 2020 together with documents provided to the Complainant before his disciplinary meeting in January 2020. I have also seen the Complainant’s response to this additional documentation/comment.

I have carefully listened to the evidence adduced in the course of this hearing. The Complainant gave comprehensive evidence on his own behalf and his evidence was tested by the Respondent’s representative. Ultimately the Respondent only put up one witness Ms. B, but I am happy that this witness was able to give a comprehensive account of the Respondent’s position.

The Complainant has worked with the Respondent restaurant chain since June of 2016. The Complainant worked in a number of the outlets and by November of 2019 he was a Second Assistant Manager on the Respondent premises in Dundrum. On the 13th of November 2019 the Complainant’s performance came under scrutiny when an allegation was made that the Complainant was not carrying out all of his functions in a satisfactory way. In particular, there seemed to be a difficulty with the taking of the temperature of raw meat and the detailing of the weekly hazard sheet. The Complainant had not previously been pulled up on his performance of such tasks.

The Complainant vehemently objected to the allegations being made and the investigation which was subsequently conducted (by Ms. B), and the Disciplinary sanction which was ultimately applied. I do accept that the disciplinary process was less than optimum. The employer’s case was confused at the outset and the Employer failed to acknowledge or consider the points or arguments made by the Complainant who felt he was being singled out on an issue which was the responsibility of many and where there had (he said) been a light touch training programme and procedure in place. In particular, the Complainant felt his direct Manager in Dundrum (M) had it in for him.

In the end, the Complainant was given a six month verbal warning and this sanction was made known to him at a Disciplinary meeting conducted on the 10th of December 2019. It is noted that the written confirmation of this sanction was not released until the 7th of January 2020. As the employment was over the sanction was not appealed.

I certainly accept the Complainant’s evidence that he had not considered leaving this workplace until the Disciplinary process so described was initiated. He was, I accept, genuinely fearful that he was going to be fired and/or that his pushback on the allegations being made against him would make his working relationship with Management very difficult in the future.

A few days after the Disciplinary process had been completed, the Area Manager Ms. B contacted the Complainant with a view to seeing if he would move to a sister restaurant in South County Dublin. There is no doubt that the Complainant’s Contract of Employment demand flexibility amongst the staff and the Complainant had already moved at least once within the group of restaurants. Whether he should or shouldn’t have, the Complainant appears to have formed the view that the move was being imposed on him and he was greatly panicked at the move. From where he lived at the foothills of the Dublin mountains (and given the lack of public transport) he anticipated an added travel time of up to two or three hours if he took the position. I do not doubt that the proximity of the verbal warning and disciplinary process to this proposed move to another restaurant, played heavily on the Complainant’s mind. He could not be blamed for thinking that the two were linked.

That said, in his evidence the Complainant confirmed that he knew there was an expectation that staff would be moved and that he was aware that the Manager-to-staff ratio was lopsided in his outlet whilst there was a requirement for Management in Dun Laoire.

The Complainant wrote to B on the 13th of December 2019 outlining the reasons why the proposed move simply would not work for him, and that he would be resisting any immediate change. I would say that Ms. Bs response is totally reasonable and conciliatory and she indicated that she had heard his thoughts and concerns and that they could talk further. Ms B sought to set up a meeting for later in the week.

As it happens the two did not meet again until the Sunday 22nd of December. By this point in time B had come to understand that the Complainant was terminating his own employment as he had been offered a job at the deli counter in a convenience shop. This information had been relayed to Ms. B by the Complainant’s direct Manager M with whom the Complainant had had a conversation the day before.

On balance I have to find that B was correct in believing that the Complainant was voluntarily taking up a new position at a different type establishment. I do not accept that she was being advised or that she should have somehow intuited that the Complainant was unhappy or felt he was being pushed out in some way. I accept that the Complainant was told by B that he would not ultimately have had to move to the Dun Laoire establishment. I believe that the Complainant’s then frame of mind is quite clear from his upbeat facebook message posted later that same day wherein he explains that after three and a half years and meeting some amazing people an opportunity had arisen he could not refuse. There is no bitterness and no regret, and I am satisfied that as of the 23rd of December the Complainant had formed the intention to leave of his own volition.

I do not believe that the previously imposed disciplinary sanction formed any part of his rationale. I do, however accept that the investigative and disciplinary process did trigger his search for the alternative employment.

Five days later on the 28th of December 2020 the Complainant wrote an email to B purporting to withdraw his tendered resignation. The Complainant indicates that he felt rushed and had believed that he was being bounced into moving to Dun Laoire premises. The Complainant asks to meet for a chat and says he does not want to leave and believes he has so much more to offer.

To my mind this has the hallmarks of a cooling off period giving rise to focus and clarity and a desire to reverse a decision made in haste or through fear or anger or without the full facts. Such reversals are often sought in the workplace – sometimes appropriately, sometimes not.

Ms. B gave evidence that she considered the request and reflected on the friendly conversation they had had on the 22nd of December. And, so it was, B concluded that the complainant would be better served by not returning to the Respondent workplace, and that the work-life balance he had presented to her as part of his reasons for moving could only be achieved if he moved on. I found the witnesses evidence to be somewhat contrived at this point. She confirmed that she had no qualification that would allow her to determine what career path an individual should take given a choice. She certainly could not profess to know the Complainant’s needs and wants better than he himself did. The witness B did agree with me on this point.

It was therefore quite surprising that the Complainant’s request to be allowed remain in the workplace (and I note he was still working out his Notice period) was refused without conversation and that B simply told him that his reasons for wanting to move were sufficient for her denying him an opportunity to stay.

In those circumstances, I am satisfied that the Dismissal herein occurred at this point in time.

The Respondent representative argued that this was a Constructive Dismissal and had been met as a constructive Dismissal. I accept that the Complainant – who filled out his own form - had indeed described his termination as a Constructive Dismissal but that the facts as evidenced in the paperwork (and confirmed by the relevant witness) disclose a refusal of a request to stay as having occurred in the course of the employment/service. I do not believe that the Respondent was disadvantaged an the representation was complete.

I note that after a period of unemployment and a protracted period on the Covid payment the Complainant found alternative employment at the end of July wherein his on less money than he had been.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033988-001

The Complainant has been dismissed and the Dismissal has been unfair and the Complainant is entitled to redress by way of compensation for financial loss attributable to the dismissal in the sum of €6,200.00.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033989-001

This Complaint was withdrawn as being repetitious of the complaint outlined at CA-00033988-001